The patient said she had a needless operation, after a clinician recorded the wrong word to describe her pathology.

An experienced and well-established general surgeon, Dr. H has, over the past decade, restricted his practice to breast surgery. Working in such an emotion-laden area, he is particularly careful in his clinical actions and takes great pains to explain them thoroughly to his patients. But even the most diligent practitioner is vulnerable to a malpractice suit.

The patient, a 45-year-old photographer, was referred for treatment of a breast lump discovered on self-examination. Dr. H explained the situation to this well-educated and knowledgeable woman and advised her to have the lump treated through excision biopsy, which he performed several days later. The biopsy specimen was submitted to a pathologist, who reported finding an “extensive” intraductal adenocarcinoma that now involved the surrounding tissue.

Dr. H’s review of the pathology report with the patient was later called into question. The patient insisted that she was told she had a multicentric carcinoma and required a mastectomy (even though the lump actually represented a small carcinoma). Dr. H denied this account, later testifying that he had correctly explained to the patient that the cancer was localized and that the patient had insisted on mastectomy.


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In fact, the woman had discussed having her other breast removed because her mother had died a painful death from breast cancer, insisted Dr. H, but he had dissuaded her. Unfortunately, while dictating his notes of the visit into the medical records, Dr. H mistakenly described the cancer as “multicentric” rather than “extensive,” which was the word the pathologist used to describe the invasive nature of the malignancy. The patient underwent a simple mastectomy and received chemotherapy for possible secondary spread.

After surgery, the patient appeared throughout the media to recount her ordeal. She gained national prominence by publishing photos of her body after the mastectomy. Her message was that women should not be ashamed if they are required to undergo mastectomy.

Eventually she examined her medical records, including the pathology report, and discovered Dr. H’s alleged mistake. Shocked and angry, she went back to Dr. H’s office, carrying a concealed tape recorder in her purse and asked why he had recommended a mastectomy rather than a lump-ectomy. Dr. H explained his reasoning but did not recount his patient’s role in asking for a mastectomy. Armed with this evidence, she went to her lawyer’s office and asked him to file a malpractice suit against Dr. H for performing an unnecessary mastectomy. The plaintiff’s lawyer enthusiastically complied.

As the case progressed through discovery and into depositions, the contents of the audiotape were revealed as being less clear-cut than the patient had originally believed. She testified that the tape represented the physician explaining his actions, and Dr. H argued that he was quoting from the pathology report, which described the small invasive intraductal carcinoma as “extensive.” In his deposition, the pathologist explained that “extensive” in this context meant “invasive.” The plaintiff’s lawyer accepted this distinction and did not include the pathologist in the malpractice suit.

An expert testifying on behalf of the plaintiff stated that a lumpectomy was “clearly indicated” in this case. The defense expert alleged that the more extensive operation might afford better protection from future cancers. When settlement negotiations broke down, the case went to trial.

The jury listened to the tape of Dr. H explaining his recommendation for simple mastectomy. Afterward, the plaintiff’s lawyer produced the patient’s medical records with a flourish and compared Dr. H’s entries concerning a “multicentric” carcinoma with the actual pathology report’s note of an “extensive” intraductal carcinoma. Jurors heard testimony from the patient as to how the mastectomy had damaged her emotional life and self-image, as well as a detailed account of the physical discomfort and skin hypersensitivity that occurred after the mastectomy.

In summing up, the plaintiff’s lawyer stressed the embarrassment of losing a breast and recounted how Dr. H’s misreading of the pathology report resulted in unnecessary surgery. The defense’s summary concentrated on the fact that an honest mistake of transcription into the physician’s notes led to very few negative consequences. The jury awarded the plaintiff nothing for economic loss but gave her $2.2 million for pain and suffering.

Legal background

Many states have enacted legislation restricting noneconomic damages (pain and suffering) to $250,000, leaving cases such as this one, which have little in the way of medical bills or lost income, as the modern-day orphans of malpractice litigation. Plaintiff’s lawyers explain that the high cost of preparing a malpractice suit makes it hard to justify taking on cases with mainly “soft” damages.

The patient in this case suspected miscommunication between her and her clinician and returned, armed with a hidden tape recorder, to question him. She produced the tape during the ensuing litigation and used it to discredit Dr. H’s testimony. Taping your own conversations is legal in most states. Given the success of this strategy, clinicians can expect to be recorded more often, adding to their stress over possible litigation and further eroding the clinician-patient relationship.

Lessons learned

Accuracy in communications between clinicians is of paramount importance, particularly in today’s fragmented and specialized environment. Treating clinicians are used to standard descriptive wording when describing malignancies. Deviations from standard descriptions carry the risk of being misunderstood, as may have happened in this case.

When you encounter ambiguity or unclear wording in a report, call the pathologist directly. Unfortunately, this takes time away from an already stressful day.

This case is among the last of a type that has dominated malpractice headlines for years: one with few economic damages, such as lost wages or medical bills, but a huge potential for other damages, such as pain and suffering.

While federal legislation to limit these damages is mired in Congress, most states now have imposed some type of limitation on pain and suffering awards. Nevertheless, financial pressures on clinicians have not significantly lessened.